Sukhvinder Sing,, Karnal v. ITO, Karnal

ITA 2902/DEL/2009 | 2005-2006
Pronouncement Date: 27-04-2010 | Result: Allowed

Appeal Details

RSA Number 290220114 RSA 2009
Assessee PAN AMQPS9413D
Bench Delhi
Appeal Number ITA 2902/DEL/2009
Duration Of Justice 10 month(s) 11 day(s)
Appellant Sukhvinder Sing,, Karnal
Respondent ITO, Karnal
Appeal Type Income Tax Appeal
Pronouncement Date 27-04-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 27-04-2010
Date Of Final Hearing 27-04-2010
Next Hearing Date 27-04-2010
Assessment Year 2005-2006
Appeal Filed On 16-06-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI K.D. RANJAN ACCOUNTANT MEMBER ITA NO.2902/DEL/2009 ASSESSMENT YEAR 2005-06 SHRI SUKHVINDER SINGH VS. INCOME-TAX OFFICER WAR D-2 PROP. S.S. BUILDERS AAYKAR BHAWAN SECTOR-12 C/O SH. GIRISH ANEJA C.A. KARNAL HARYANA. 796 SECTOR-13 U.E. KARNAL. PAN.AMQPS9413D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GIRISH ANEJA C.A. RESPONDENT BY : SHRI A.K. SINHA SR. D.R. ORDER PER R.P. TOLANI JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) KARNAL DATED 30.3.2009. 2. VARIOUS GROUNDS ARE RAISED CHALLENGING FRAMING O F ASSESSMENT U/S 144 APPLYING NET PROFIT RATE OF 8% AS AGAINST 0.48% BY THE ASSESSEE. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE GROUND RAISED MAY BE CONSIDERED AS ABOVE IN SUBSTITUTION TO AVOID REPETITION OF GROUNDS OF APPE AL AS FILED. 3. LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET CONTE NDS THAT THE ASSESSEE IS A CIVIL CONTRACTOR AND MAINTAINS REGULAR BOOKS OF ACC OUNT WHICH ARE AUDITED U/S ITA NO.2902/DEL/2009 2 44AB. SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFOR E THE ITAT DELHI BENCH-G NEW DELHI IN ASSESSEE'S OWN CASE IN ASSESSMENT YEAR S 2003-04 AND 2004-05 IN I.T.A.NOS.380 & 381/DEL/2008 AND VIDE ORDER DATED 1 5.9.2009 THE TRIBUNAL SET ASIDE THE MATTER AND RESTORED IT BACK TO THE FILE O F THE ASSESSING OFFICER TO DECIDE THE ISSUE ABOUT GP AFRESH AFTER ALLOWING ASSESSEE T O PRODUCE ALL THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE ALONG WITH VOUCH ERS BANK STATEMENTS AND OTHER DOCUMENTS BY OBSERVING AS UNDER:- 11. HOWEVER WITH A VIEW TO DETERMINE CORRECT AND JUST INCOME WITH REFERENCE TO THE BOOKS OF ACCOUNTS AND OTHER RECORD S CLAIMED TO HAVE BEEN MAINTAINED BY THE ASSESSEE WE ARE OF THE CONSIDERE D OPINION THAT LET ONE MORE OPPORTUNITY BE GIVEN TO THE ASSESSEE TO PRODUC E HIS BOOKS OF ACCOUNTS SO THAT THE AO SHALL BE ABLE TO MAKE THE ASSESSMENT WITH REFERENCE TO THE VARIOUS TRANSACTIONS RECORDED BY THE ASSESSEE ILL T HE BOOKS OF ACCOUNTS INCLUDING THE VARIOUS RECEIPTS AND PAYMENTS MADE IN CASH BY THE ASSESSEE FROM TIME TO TIME AND AFTER EXAMINING THEIR NATURE AND SOURCES THEREOF AND SHALL ALSO BE ABLE TO ASCERTAIN AS TO WHETHER THE A SSESSEE HAS DISCLOSED TRUE AND CORRECT PROFIT FROM HIS BUSINESS AND NO UNACCOU NTED MONEY HAS BEEN INTRODUCED IN THE GARB OF VARIOUS CREDITS IN THE VA RIOUS ACCOUNTS AND AT THE SAME TIME THE ASSESSEE SHALL ALSO BE IN A POSITION TO PROVE AND ESTABLISH THAT WHATEVER INCOME HAS BEEN RETURNED BY THE ASSESSEE I S TRUE AND CORRECT INCOME AND NO FURTHER ADDITION IS CALLED FOR ON ANY ACCOUNT. WE THEREFORE RESTORE THESE TWO ASSESSMENTS BACKS TO THE FILE OF THE AO FOR HIS DE-NOVO ASSESSMENT. THE ASSESSMENT FOR THESE TWO ASSESSMENT YEARS SHALL REMAIN WIDE UPON BEFORE THE AO FOR HIS FRESH ASSESSMENT AF TER EXAMINING AND VERIFYING THE BOOKS OF ACCOUNTS OF THE ASSESSEE INC LUDING THE VARIOUS STATEMENTS OR DETAILS FILED BY THE ASSESEE AND THAT TOO AFTER PROVIDING ITA NO.2902/DEL/2009 3 REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. WE DO HEREBY DIRECT THE ASSESSEE TO PRODUCE ALL THE BOOKS OF ACCOUNTS C LAIMED TO HAVE BEEN MAINTAINED BY THE ASSESSEE AND WHICH WERE ALSO AUDI TED ALONGWITH ALL ORIGINAL VOUCHERS AND OTHER DETAILS AND BANK STATEM ENT AND ANY OTHER PAPERS OR DOCUMENTS MAINTAINED BY THE ASSESSEE BEFORE THE AO WITHIN THREE MONTHS FROM THE END OF THE MONTH IN WHICH THIS ORDE R OF THE TRIBUNAL IS RECEIVED BY THE ASSESSEE AND THEN SEEK NECESSARY I NSTRUCTIONS FROM THE AO FOR FURTHER COURSE OF ACTION / STEPS FOR HEARING TH E MATTER. ON PRODUCTION OF BOOKS OF ACCOUNTS AND OTHER RECORDS BY THE ASSESSEE THE AD SHALL EXAMINE AND VERIFY THE SAME AND SHALL EXAMINE AND CONSIDER ALL THE ASPECTS OF THE MATTER INCLUDING PAYMENT MADE IN CASH IN VIOLATION OF SECTION 40 A(3) OF THE ACT DISCREPANCY IF ANY IN THE RECEIPTS/SALES CASH CREDIT SOURCE OF MONEY INTRODUCED IN CASH BOOK AND BANK ACCOUNT SOU RCE OF ANY INVESTMENT AND EXPENDITURE MADE BY THE ASSESSEE AND ANY OTHER MATTERS AS PERMITTED UNDER LAW AND SHALL MAKE SUCH ENQUIRY AS HE THINKS FIT AND PROPER AND SHALL THEN DETERMINE THE TOTAL INCOME OF THE ASSESS EE ON THE BASIS OF MATERIALS AND INFORMATION BROUGHT ON RECORD. WE FUR THER HOLD THAT IN THE EVENT THE ASSESSEE FAILS TO COMPLY WITH THE TERMS O F PROVISIONS CONTAINED IN SECTION 143(2) AND 142(1) BY NOT PRODUCING NECESSAR Y DETAILS RECORDS AND BOOKS OF ACCOUNTS ETC. THE ASSESSING OFFICER WOULD BE AT LIBERTY TO DRAW ADVERSE INFERENCE S AGAINST THE ASSESSEE THAT IF TH OSE BOOKS OF ACCOUNTS AND OTHER PAPERS AND RECORDS WERE PRODUCED BEFORE THE A O THOSE WOULD HAVE GONE AGAINST THE INTEREST OF THE ASSESSEE AND IN T HAT CASE THE AO SHALL BE AT LIBERTY TO MAKE THE ASSESSMENT TO THE BASIS OF HIS JUDGMENT BY APPLYING 8% RATE OF PROFIT ON TOTAL RECEIPTS WILL SHALL BE CON SIDERED TO BE NET PROFIT AFTER CONSIDERING ALL EXPENSES INCLUDING DEPRECIATION BU T HOWEVER AND NO SEPARATE ADDITION U/S 40A(3) SHALL BE CALLED FOR. ./. ' ITA NO.2902/DEL/2009 4 4. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE ISSUE ABOUT DISALLOWANCE U/S 40A(3) IS NOT THERE IN THIS YEAR. 5. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE O RDERS OF THE AUTHORITIES BELOW. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IN VIEW OF EARLIER TWO YEARS ORDER PASSED BY THE ITAT IN ASSESSEE'S OWN CASE SUPRA WE SET ASIDE THE ISSUE RAISED ABOUT GP IN THE GROUNDS OF APPEAL FILED BY THE ASSESSEE BACK TO THE FILE OF THE ASSESSING O FFICER TO DECIDE THE SAME AFRESH WITH THE SAME DIRECTIONS OF THE ITAT AS MENTIONED A BOVE. 7. IN THE RESULT THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27.4.2010. SD/- SD/- (K.D. RANJAN ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 27.04.2010. VSK COPY FORWARDED TO: - 1. APPELLANT-ASSESSEE 2. RESPONDENT-REVENUE 3. CIT 4. CIT(A) 5. DR ITAT NEW DELHI. DEPUTY REGISTRAR